By Christopher Ziegler
Good Americans have been led to believe a lie about their history. The lie is that the Second Amendment guarantees a civilian the right to firearms.
This idea has a name in law: the individual rights theory. Gun manufacturers and the NRA have worked hard to push this lie on us, and they have been aided in their labor by cultural myths and lazy journalism, which reprints memes more often than it questions them.
This lie disfigures our understanding of the Constitution and engenders the notion that it contains a “right to vigilantism,” when in fact the entire spirit of the document runs counter to such notions.
Some gun-control advocates have even hinted that the Amendment should be removed or the Constitution altered. This horrifies me. It proves how successful the NRA has been in spreading ignorance and libeling the laws of our land.
“The Second Amendment doesn’t guarantee the right to have firearms at all.” So said former Chief Justice Warren Burger, a conservative nominated by President Nixon.
About this quote, taken from a 1990 interview in Parade Magazine, Cass Sunstein of the New Republic writes, “Burger meant to describe what he saw as a clear consensus within the culture of informed lawyers and judges—a conclusion that was so widely taken for granted that it seemed to him to be a fact.”
Anyone who believes the individual rights lie and then reads the full text of the Amendment will be perplexed—even vexed—by Madison’s deliberate choice of a particular word; a word which, like a beacon in the fog, lights the way to the safe harbor of the Founder’s foresight—“Militia.”
In the same interview quoted above, Justice Burger says that to understand its original intent the Amendment must be read as: [Because] a well-regulated militia [is] necessary to the security of a free state….
The reading of the Second Amendment which the NRA wishes we’d all forget is the collective rights theory, which says that the Amendment only applies to cases involving citizen service in a government organized militia; that it confers a collective right.
If the Framer’s had wanted to create an individual right they could have easily done so. The Fifth and Sixth Amendments are examples. The Second Amendment more closely resembles the Tenth, which confers a collective right to the states.
Madison worded it to clarify the division of authority not made explicit in the main body of the document, and to reassure vocal opponents of the Constitution that Congress would not abuse its power to control the state militias in such a way that would leave any state defenseless. So it gives the states a separate but equal right to arm and staff their own militia contingents.
Why was the clarification so badly needed? Because a well-regulated militia is necessary to the security of a free state.
“To bear arms” does not mean to carry weapons. It is a colonial-era British term which doesn’t translate today. It means to render military service. You do not “bear arms” at a shooting range or in the drawer of your night stand. Drug cartels don’t “bear arms.” You “bear arms” when you serve in a military unit.
Hence: The right of the people to render military service shall not be infringed because a well-regulated militia is necessary to the security of a free state. This reading is consonant with the talk of the age, with the philosophy of Madison, and with the spirit of the Constitution altogether.
As Justice Burger says, the Amendment’s purpose was “to ensure that the ‘state armies’—‘the militia’—would be maintained for the defense of the state.” Got beef with Justice Burger? Read the original texts: the Ratification debates of 1787-88, the debates of the First Congress and Federalist 29.
You will find that those debates centered exclusively on issues stemming from federal control of the militia, and as such bore no resemblance to our current debate over whether the people have the power to tighten gun laws.
Collective rights scholarship defers to legal tradition, therefore it cannot ignore the overwhelming influence debates over the militia had on passage of the Amendment. Individualist scholarship relies on cherry-picked quotes from wide-ranging sources, a tactic which eschews analysis of the relevant historical context and can therefore sidestep the inconvenient bit about the militia.
According to research by Robert J. Spitzer, law review articles supporting the individualist view only started to outnumber collectivist ones in the 1980s and 90s. This was the direct result of rewards the NRA gave out to writers and academics who could beef-up individualist scholarship. That strategy finally bore fruit with the 2008 Supreme Court ruling of District of Columbia v. Heller.
Nevertheless, libertarians should not crow about this decision—a 5-4 ruling does not disappear the truth. And, once you wade into the weeds, it becomes clear that the decision still provides enough of latitude to pass much of the gun control we sorely need.
By Christopher Ziegler
On Monday, April 15, two bombs exploded on the streets of Boston. On Wednesday, April 17, the US Senate failed to pass a bi-partisan gun control measure that would have mandated background checks on all gun purchases.
There are few coincidences in life, and fewer in politics. These two newsworthy events which, on first glance, seem incidental are in fact not unconnected: They are indirectly linked through the professional fear factory known as the NRA. Let me explain….
My father worked for 28 years as a Special Agent with the ATF (Bureau of Alcohol, Tobacco, Firearms, and Explosives). For a long time he kept a microscope in a clunky metal suitcase which is still collecting dust in the basement somewhere. The microscope was made to read something called taggants. Taggants are color-coded particles that can be included in the manufacture of gun powders of the kind used in the bombs made by the Boston terrorists.
These explosive taggants are designed to hasten the arrest and prosecution of bombers, as well as deter would-be terrorists, by enabling crime investigators to trace the gun powder used in a bomb through mandatory distribution records back to a dealer and original buyer or point of theft.
According to a 1980 congressional study, “Identification taggants would facilitate the investigation of almost all significant criminal bombings in which commercial explosives were used.” This study concluded that taggants could increase arrests related to bombings by as much as 75%, according to the LA Times.
Currently, taggants are only mandatory in the manufacture of plastic explosives. The ATF has twice advocated for legislation requiring the use of taggants by all gun powder manufacturers. The NRA, however, opposes such legislation. And whenever the measure has come up for a vote, once in the 1970s and again in 1993 after the first World Trade Center attack, Congress has successfully failed to pass anything.
This brings us to the background checks vote of April 16. The NRA killed mandatory taggant legislation by arguing that it would amount to a form of backdoor gun registration. And even though over 90% of Americans favor universal background checks, the NRA has again successfully frightened a minority of Americans and Senators into believing that universal background checks would be a slippery slope to a fictional scheme for gun registration and confiscation.
The real reason the NRA spreads misinformation and stakes such hard-line positions is because they represent the wish-list of weapons manufacturers which, just like polluters, drug companies, or fertilizer plants, naturally object to any regulation designed to protect public safety if it interferes with their bottom line. If other industries can have lobbyists in Washington, I suppose it’s only fair that the gun industry gets theirs too. But the NRA commits many serious abuses of the public trust that distinguish it from other corporate lobbies. The organization holds a cultish sway over a certain segment of the American public, derived from its storied but long-since abandoned original mission, and from the fear it artfully gins-up among its membership in order to convince them to help finance their lobbying efforts. They have abetted the proliferation of weapons within our borders over the last 40 years. But by far the worst abuse is the violence the NRA has inflicted on the U.S. Constitution.
The Second Amendment, to anyone with eyes to see and ears to hear, is clearly about providing for domestic security and not at all about guaranteeing immediate access to guns for personal use. This modern-day, erroneous interpretation of the Amendment is, according to former Supreme Court Chief Justice Warren Burger, “one of the biggest pieces of fraud” ever perpetrated on the American people by a special interest group. By foisting this fraud on us, the NRA has undermined domestic security in our schools and streets. Since 1968 alone, over 1.4 million Americans have died by firearms, more than the 1.2 million American soldiers killed in all the wars in American History.
The NRA does not stand with the American people. Nor does it stand for domestic security or the Second Amendment. NRA lobbyists, and the cowardly politicians who kneel to them, stand with the moneyed interests of weapons manufacturers. This is the reason they opposed taggants; this is the reason they block background checks; this is the reason they prevent Congress from appointing a Director of ATF; and this is the reason they decry U.N. arms treaties meant to fight global thugs who traffic in weapons, drugs, and human beings.
By serving the corporate interests of weapons manufacturers, the NRA helps pave the way for mass-shooters, bombers, and gangsters to bring their dreams to fruition. By describing Federal agents as “jack-booted thugs” who wear “Nazi bucket helmets,” as Wayne LaPierre wrote in response to the Oklahoma City bombing, a move that caused former President George H.W. Bush to resign his life-long membership, the NRA demonizes people like my dad who work to protect the public from the next David Koresh, Tim McVeigh, Eric Harris, Ted Kaczynski, Jared Loughner, James Holmes, Adam Lanza, Tamerlan Tsarnaev….
By Christopher Ziegler
“Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket.” —Eric Hoffer, The Temper of Our Times
Many of the actions taken by the NRA since the Newtown tragedy could prove counter-productive to the cause of gun rights. The conservative New York Post, for example, attacked the NRA’s first press conference after Newtown as tone deaf. Governor Christie called an NRA web ad attacking the President’s daughters “reprehensible.” And, more recently, an OP-ED written by NRA Executive Vice-President Wayne LaPierre, entitled “Stand and Fight,” earned the ire of Republican TV host Joe Scarborough for being “laced with racial overtones.”
However, when I sat down to read LaPierre’s OP-ED, I was half-hoping for a juicy, red-meat polemic. I was so disappointed! Upon finishing I realized that “Stand and Fight” was not a right-wing screed at all: it was a slick and carefully crafted sales pitch. The first page of the article contained all of the fear mongering I had heard about. The rest was just LaPierre fishing for cash.
I did more research and found that “Stand and Fight” is also the name of a coordinated, four-year marketing push by the NRA in response to the Newtown tragedy (caps and tee-shirts included). And then I grasped what I had failed to see before: Protecting the Second Amendment is not the NRA’s top priority. The NRA’s top priority is making money off the people for whom protecting the Second Amendment is a top priority.
Despite the NRA’s official non-profit tax status, the organization nevertheless rakes in money from private donations, multi-million dollar corporate sponsorships from the gun industry, advertizing in their newsletters, and fees from retail gun sales. According to reporting by Mother Jones, LaPierre earned $960,000 in 2010. So rest assured, the NRA and the gun manufactures they represent constitute a successful business model. And, like all businesses, they have a product to sell: guns and NRA membership.
If the pendulum of public opinion swings in favor of more gun-control in the short term, that is not necessarily contrary to the NRA’s interests. Because Wayne LaPierre is not the leader of a political movement or even an opinion-maker: he is a hustler, and not a bad one at that. If you go to the conservative website The Daily Caller and read his OP-ED (and I recommend you do) you’ll find gems like this one: “An even stronger NRA is the only chance gun owners have to withstand the coming siege. This begins with remembering to keep your own membership active, or reactivate it if it has lapsed. It means reminding yourself, ‘I have a son and daughter who aren’t members and should be.’”
There is nothing wrong with donating money to a cause that you support. But there is a word for people who allow themselves to be gulled through fear into giving up their cash: suckers. My problem with “Stand and Fight” is how LaPierre cynically manipulates his audience’s fears just to push his junk product. Because as a salesman, LaPierre knows that people who buy guns typically do not do so out of hope for the future, but out of fear and apprehension. And so the first part of his OP-ED is dedicated to depicting a future full of threats and terror: “Hurricanes. Tornadoes. Riots. Terrorists. Gangs. Lone criminals. These are perils we are sure to face—not just maybe.”
Fear is our most powerful emotion, so it’s no surprise that certain industries will appeal to it. Insurance salesmen will use fear, but at least the legitimacy of their claims can be evaluated; for example, by checking whether or not you live on a flood plain. But in “Stand and Fight” LaPierre resorts to just making stuff up. He says President Obama is “leading this country to financial ruin,” when in fact the President has cut over $200 billion from the deficit in the past two years. He claims that after Hurricane Sandy “looters ran wild in south Brooklyn” when, according to the NYPD, crime actually dropped during that period.
At one point he says that the next “heinous act of mass-murder—either by terrorists or some psychotic—will be the pretext to unleash a tsunami of gun control.” I find this interesting because it reveals that for him and his target audience, the most horrifying prospect is gun control, not mass-murder. But most of the fears he elicits revolve around the “collapse” paranoia that has gripped the Tea-Party fringe of the Conservative movement. I do not have enough space allotted here to debunk the collapse mentality, but suffice it to say that it plays right into the hands of the swindlers who run the racket of fear in right-wing media. (Buy gold, anyone?)
Here’s a scarier fact: Since the Newtown massacre, 2,453 Americans have died by gunfire. I understand that an NRA membership comes with a cap that says “Defend Freedom.” Nevertheless, by purchasing an NRA membership, you are not “defending freedom” anymore than someone who buys a gym membership is defending freedom. Nor are you ensuring your survival in a post-apocalyptic world by purchasing a gun. Instead, you are marginally increasing the likelihood that you or someone you love will die by a bullet.
When you’re in love, you’ll absolve the whole world of its wrongs so you can keep on loving.
When you hate, you would sooner damn the whole world and everything in it than admit you have no right to your hate.
Truth and Destiny just Woman apprehends,
but only when—in ecstasy—she suspends
words, with which man mangles what he intends.
Since the immediate resists description,
he only sees it refracted through fiction.
But Nature’s laws cannot be suspended
without consequences unintended;
and in his aberration was he blessed to find
the advantages of an androgynous mind.
For it bestowed the interpreter’s key
through which he could decipher Destiny
—as bells tell Time by the tolling of the hours—
written in the language of fowl and flowers.
You sound no better than Wall Streeters and preachers,
whose prate-spitting ways, though different, share this feature:
Cut-loose in either the unearthly or urbane,
they flatly refuse to deign to the mundane
and seek surplus incentive to do any task—
isn’t your life sufficiently rich, I ask?
Victims of a self-inflicted flaw,
their bloated ambitions eat them raw;
that’s Pride—the Devil’s throbbing claw.
For when the conditions of innocence expire,
one becomes either an actor or a liar,
and though that difference may seem minute
it’s the difference between the saint and brute.
But why are you acting so deliriously?
You’ve never taken yourself that seriously….
Joke is a pretext and drink is a ruse
each designed to distract or excuse
the candor consciousness can’t stand
and express the expressly banned.
We’re born purposeless, meaningless and mean,
and nothing slakes the loneliness unseen,
that dogs and drives us into reckless risk
to earn an etching in an obelisk.